Citation Nr: 0331992
Decision Date: 11/18/03 Archive Date: 11/25/03
DOCKET NO. 02-15 052A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Cleveland,
Ohio
THE ISSUES
1. Entitlement to service connection for residuals, right
knee injury.
2. Entitlement to service connection for lumbosacral strain,
to include as secondary to right knee injury.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
Tresa M. Schlecht, Counsel
REMAND
The veteran had active duty for training (ACDUTRA) from July
1957 to January 1958, and active duty from October 1961 to
August 1962, as well as additional unverified periods of
reserve component service. This matter comes before the
Board of Veterans' Appeals (Board) on appeal from an October
2001 rating decision of the Department of Veterans Affairs
(VA) Regional Office (RO) in St. Petersburg, Florida, which
denied entitlement to service connection for a right knee
injury and for lumbosacral strain secondary to a right knee
injury. The veteran disagreed with those determinations in
January 2002, and a statement of the case was issued in
September 2002. The veteran's timely substantive appeal was
received in October 2002.
During the pendency of the claim, the claims file was
transferred to the jurisdiction of the Cleveland, Ohio RO.
The veteran requested a Travel Board hearing. A Travel Board
hearing was scheduled in May 2003 in Ohio. The record
reflects that the veteran failed to report for this hearing.
The record also reflects that it is not clear where the
veteran is currently residing.
The veteran submitted a claim for service connection for a
right knee injury in December 2000. He contended that the
right knee injury was sustained during his first period of
service, and that he had been continuously treated by
chiropractic physicians since that time. Service medical
records reflect that the veteran was also treated for a right
knee injury during each of his two periods of service. The
veteran requested VA examination. Further development of the
medical evidence is required.
In addition, the veteran should be specifically notified that
he should identify the providers who have continuously
treated his right knee subsequent to the injury or injuries
sustained in service. The veteran should be advised of the
types of evidence he may submit to substantiate his claim
that he has had an antalgic (uneven) gait since his active
service. Paralyzed Veterans of America v. Secretary of
Veterans Affairs, 345 F.3d 1334 (Fed. Cir. 2003); Disabled
American Veterans, et. al. v. Secretary of Department of
Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003);
Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).
Accordingly, the case is REMANDED for the following actions:
1. (a) Notify the veteran of what
evidence is required to substantiate his
claims for service connection for a right
knee injury and for lumbosacral strain
secondary to a right knee injury, and
notify the veteran as to which portion of
the evidence he is responsible for
obtaining and what evidence VA will
assist him to obtain or develop. The
veteran should be notified that evidence
proximate to his service regarding the
claimed disorders would be relevant and
persuasive evidence.
(b) The veteran should be specifically
advised of the period of time in which he
may timely submit or identify evidence
which might substantiate his claims.
(c) Any notice given, or action taken
hereafter, must also comply with the
holdings of Disabled American Veterans,
et. al. v. Secretary of Veterans Affairs,
327 F.3d 1339 (Fed. Cir. 2003), and
Paralyzed Veterans of America, et. al. v.
Secretary of Department of Veterans
Affairs, 345 F.3d 1334 (Fed. Cir. 2003),
as well as any other controlling guidance
provided after the issuance of this Board
decision.
2. The veteran should be afforded
another opportunity to submit alternative
evidence regarding the etiology or onset
of observable symptoms of a right knee
injury or of lumbosacral strain,
including statements from co-workers,
friends, or others who may have observed
relevant symptoms, records of
examinations for employment purposes,
employment medical records, reports of
insurance examinations, reports of any
examinations of the right knee proximate
to service, or any other evidence which
might substantiate the veteran's
contentions.
3. The veteran should again be asked to
identify VA facilities and private
providers at which or by whom he has been
treated for a right knee injury or for a
back disorder prior to VA treatment in
2001, the only clinical evidence of
record.
In particular, the veteran should be
asked to identify the chiropractic
doctors he stated have provided treatment
continuously since his service. Records
should be obtained from each treating
facility or individual identified, as
well as from Brooksville Hospital
regarding hospitalization in
approximately 2001.
The veteran should also identify any VA
facilities at which he has received
treatment for a right knee or back
disorder since September 2001, the most
recent VA clinical records associated
with the claims file. In particular, the
veteran should indicate when he was last
treated at the VAMC in Tampa, Florida,
and he should identify each VA facility
at which he was treated after he moved
from Tampa, Florida.
In addition, the veteran should be
advised that he should identify any VA
records of treatment for a right knee
disorder or a back disorder since service
that he wants considered for purposes of
the claims on appeal.
Records should be obtained from each
treating facility identified.
4. If clinical records obtained during
the development above confirm that the
veteran has a right knee disorder or
impairment, VA examination of the right
knee and of the back should be afforded.
The claims folder should be sent to the
examiner for review of pertinent
documents therein. Any necessary
diagnostic examinations or studies should
be conducted. The examiner should be
asked to provide an opinion, for each
diagnosed right knee disorder, as to
whether it is at least as likely as not
(Is there a 50 percent or greater
probability?) that the disorder was
incurred during or as a result of service
from July 1957 to January 1958, or during
service from October 1961 to August 1962.
The examiner should state the basis
(rationale) for the conclusions reached.
If the examiner concludes that the
veteran has a right knee disorder which
is at least as likely as not
etiologically related to his service, the
examiner should provide an opinion, for
each diagnosed back disorder, as to
whether it is at least as likely as not
(Is there a 50 percent or greater
probability?) that the disorder is
secondary to or aggravated (permanently
increased in severity) by the right knee
disorder incurred in service. The
examiner should state the basis
(rationale) for the conclusions reached.
5. After completing development,
including any actions in addition to
those specified above to satisfy the
VCAA, the issues on appeal should be
readjudicated. If any decision remains
adverse to the veteran, the veteran and
his representative should be provided a
supplemental statement of the case.
After the appropriate period of time for
response, the case should be returned to
the Board for final review.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded to
the regional office. Kutscherousky v. West, 12 Vet. App. 369
(1999).
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See The Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. § 5101 (West 2002) (Historical and Statutory
Notes). In addition, VBA's Adjudication Procedure Manual,
M21-1, Part IV, directs the ROs to provide expeditious
handling of all cases that have been remanded by the Board
and the Court. See M21-1, Part IV, paras. 8.43 and 38.02.
_________________________________________________
BARBARA B. COPELAND
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2003).